Perspectives on where our world is heading from a vantage point in Denver, Colorado.

05 October 2011

The Waiting Place

Seuss fans will recognize the reference.

For lawyers, it happens sometimes. After several weeks of back to back hearings, and stay at the office (sometimes) until midnight motion practice, a little breather opens up where there are no drop dead deadlines in the next couple of days. I look backward and realize that there are a veritable mountain of fully briefed motions sitting on judges desks in my various cases waiting for resolution. In the complex civil litigations I find myself representing parties in when I am in court, a judge is almost never ready to rule from the bench when a hearing is completed and instead reserves a ruling for a later, sometimes lengthy and sometimes stunningly short, written opinion.

Those cases are now on hold until a judge does something and everyone involved waits around working on other cases until the judges rule. In the American court system, where there is about one judge per one hundred lawyers, each of whom manages hundreds, if not thousands, of cases per year, this can take time. In most countries the number of lawyers per judge is often an order of magnitude smaller. The briefing process is subject to strict deadlines, but the ruling on motions part of the process is not. Some cases have just recently become ready for judicial action, while others have been fully briefed since April. In still other cases, my side is finished with its part of the process, but the other side still has documents to submit.

There is still no shortage of work to do. But, the sense of dire urgency ebbs for a while. I will probably still go home after rush hour is over, but people will be awake when I get there. Yet, until there is a ruling on a pending motion in a case, it doesn't make much sense to devote a lot of effort to preparing for the next stage which may or may not happen depending upon how the judge rules. Judicial decision making at the trial court level is often much less predictable than it seems when you draft the perfectly logical and analytical briefs that you ask a judge to consider.

It also isn't necessarily the case that lawyers are chomping at the bit for faster rulings. A motion of any substance can take a month to fully brief, and run to scores of pages with exhibits in addition to the argument of the lawyers, and the arguments made can be subtle. A hearing or trial is sometimes the multiday culmination of years of preparation. We don't want judges to make rulings lightly. Lawyers with any amount of professional pride want their efforts to be taken seriously and evaluated on their merits.

But, unless your business regularly engages in litigation, or you are a lawyer who does litigation work, it is hard to appreciate the invisible costs that arise not from matters being resolved incorrectly in the end, but from a process that is long, involved, and like a murder mystery, resolves nothing until the very final page of the drama is played out. The legal theory literature on the impact of attorneys fees and litigation costs on outcomes in the court system is voluminous. But, these costs are really only the tip of the iceberg. In big ticket civil litigation, impact of prolonged uncertainty on the parties can be even greater. In "bet the company" class disputes, all other business decisions may be put on hold for both parties to the dispute.

I don't think that the solutions to address these issues, some of which are inevitable to some degree in any system, need to be radical ones. We need to invest more money in the judiciary so that its capacity to resolve matters on the merits promptly is increased. We need to back away from a one size fits all system of civil proceedure and replace it with a system that better tailors the rules to particular kinds of cases (something Colorado does better than most states).

In some kinds of cases, like personal injury cases, where a trial is usually unavoidable in some form or another, we need to shut down opportunities to short circuit the process before that trial with little substantive benefit to the parties. But, the need for preparation is especially important, because unlike a criminal lawyer who can deal with guilt or innocence first, and only put together a real sentencing presentation once the verdict on criminal liability is rendered, a personal injury lawyer need to have ever conceiveable damages scenario ready to present before it is even clear how the jury will rule on liability. Jury trials introduce an inreducible level of unpredictability into the process, so pretrial procedures to tame that risk, short of settlement, verge on futility.

In other kinds of cases, particularly commercial cases where the important decisions will be made by the judge rather than a jury at some point if the case is not settled, we need to put more of the decision making process at the front end so that the scope of the case does not balloon out of control. The procedural doctrines that defer the partial resolution of cases until trial absent extraordinary circumstances don't make sense when they pre-trial motions and the resolution of the case at trial on the merits will be handled by the same judge sooner or later. In commercial cases, the more uncertainty in a case can be contained early on, the less expensive discovery and pre-trial motion practice will be overall. The scope of discovery in a civil action is a function of the matters about which there are disputed issues of fact, so the more narrowly the issues in the case are established to be early on, the less expensive it is to litigate the case as a whole. Since civil verdicts on factual issues are extremely hard to overturn for any reason, the incentive to prepare for any and every possibility, without much regard to the cost or its likelihood of mattering at trial is immense.

Lawyers in commercial cases frequently have to engage in pretrial preparation in a Schrödinger's cat reality where different plausible interpretations of a contract or other document can make entirely different sets of facts important. Yet, in American commercial litigation practice, the judge will often make no intepretation of the key contract provisions until all of the evidence has been presented at trial, after months of discovery and motion practice. Of course, there are plenty of perfectly clear contracts out there, but those are rarely the cases that go to trial.

In family law cases, the uncertainty flows more from the substantive law than from the process. The relevant rules of law are such loose standards that the range of results that would be sufficient to be upheld on appeal is vast. One can't even hope for the averaging out of individual ideosyncracies in evaluating the facts that a panel of judges or jurors provide. A single judge hears the facts, is charged with doing the right thing at he or she sees it, and does his or her best under the circumstances to craft a workable resolution to a situation that the parties are in court to give up trying to make work. Any resolution in these circumstances leaves the judge looking like he or she was biased towards someone since there is no objective standard against which to measure a right resolution, so the parties will be unhappy unless the judge has the wisdom of Solomon.

The system isn't fundamentally flawed, but it does not a lot of thoughtful pruning and tweaking to really serve its function well.